Scalia's empty chair and the Senate's path forward
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The late Supreme Court Justice Antonin Scalia established himself and will long be remembered as a towering hero of the conservative movement. The coming months will likely bring more political wrangling and high-minded rhetoric over the nomination of his successor.

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Two key questions stand out. First, can the nomination and confirmation occur before the November presidential and congressional elections? Second, what type of nominee would clear the constitutional hurdle of Senate confirmation?

Scalia leaves an impressive legacy as a tireless and unceasing champion of democracy and the constitutional text. On a personal level, of course, he also leaves an impressive family legacy: his wife Maureen and their nine children and over 30 grandchildren.

To be sure, his relentlessly logical approach and doctrinal consistency dramatically influenced the court, even his liberal colleagues, to look to the text and the plain meaning of provisions under review. His textualist approach steered the court away from judicially crafted multi-part tests that seemed more like statutes than judicial decisions. He imposed more analytical rigor in his approach to legal precedents and outcomes. He all but ended the judicial game of justifying outcomes by sleuthing for obscure snippets of language buried somewhere in the many hundreds of pages of "legislative history." Congress, he said, "does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions — it does not, one might say, hide elephants in mouseholes."

As court watchers have recognized, Scalia was also one of the best writers in the history of the Supreme Court.

On the issue of his successor, history may prove instructive. The most recent occasions when a president nominated and the Senate confirmed a Supreme Court selection in a presidential election year were 1956, 1940 and 1932. In two of these cases, a Republican president named Democrats to the high court: President Eisenhower selected William Brennan and President Hoover selected Benjamin Cardozo.

President Obama could follow this precedent and name a Republican to fill Scalia's seat. Rumor had it that Obama was considering Brian Sandoval, the Republican governor of Nevada. That type of nominee would put the pressure back on Senate Republicans to explain to American voters in their home states why a Republican nominee would be unacceptable. But wary conservatives have been burned too many times by the likes of Justices David Souter and Anthony Kennedy, or even Chief Justice John Roberts.

A Republican nominee would present a special challenge for those Republican senators up for reelection in moderate states, such as Sens. Ron JohnsonRonald (Ron) Harold JohnsonSenate probes FBI's heavy-handed use of redactions to obstruct congressional investigators Hillicon Valley: DHS gets new cyber chief | White House warns lawmakers not to block ZTE deal | White nationalists find home on Google Plus | Comcast outbids Disney for Fox | Anticipation builds for report on FBI Clinton probe Graham jokes about Corker: GOP would have to be organized to be a cult MORE (R-Wis.), Rob PortmanRobert (Rob) Jones Portman13 GOP senators ask administration to pause separation of immigrant families Lawmakers, businesses await guidance on tax law Harvard biz school honors Wilbur Ross MORE (Ohio), Mark KirkMark Steven KirkThis week: Trump heads to Capitol Hill Trump attending Senate GOP lunch Tuesday High stakes as Trump heads to Hill MORE (Ill.), Kelly AyotteKelly Ann AyotteErnst, Fischer to square off for leadership post The Hill's Morning Report: Koch Network re-evaluating midterm strategy amid frustrations with GOP Audit finds US Defense Department wasted hundreds of millions of taxpayer dollars MORE (N.H.) and Pat Toomey (Pa.).

The confirmation process changed dramatically over the last few decades, as critics of the Warren Court focused attention on the Supreme Court's failure to act as an umpire calling balls and strikes as it became a super-legislature of unaccountable life-tenured judges who substitute their own policy preferences for duly enacted laws — in the words of the late Professor Herbert Wechsler, a "naked power organ."

Ultimately, we see this frustration on both sides of the political aisle in the presidential nomination contest. We see a great divide between voters' wishes and Washington's failure to deliver the relief they seek. That divide is one reason for the rise of Donald TrumpDonald John TrumpConservatives express concern over House GOP immigration bill Poll: McSally holds 14-point lead in Arizona GOP Senate primary Trump defends Nielsen amid criticism over family separations MORE (R) and Sen. Bernie SandersBernard (Bernie) SandersHeckler yells ‘Mr. President, f--- you’ as Trump arrives at Capitol Veteran New York Dems face upstart challengers Senate passes 6B defense bill MORE (Vt.).

This presents Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellWarren on family separation policy: Trump is ‘taking America to a dark and ugly place’ Senate GOP tries to defuse Trump border crisis Schumer rejects GOP proposal to address border crisis MORE (R-Ky.) and Senate Judiciary Chairman Chuck GrassleyCharles (Chuck) Ernest GrassleyOn The Money — Sponsored by Prudential — Markets roiled by Trump's new tariff threat | Trump lashes out at Canada over trade | Warren looks to block Trump pick for consumer agency The Hill's Morning Report — Sponsored by PhRMA — Defiant Trump meets with House GOP amid border blowback Republican senator calls for face-to-face with EPA’s Pruitt MORE (R-Iowa) the perfect opportunity to redeem Washington Republicans with frustrated voters of all persuasions.

The people gave Republicans a majority in the House of Representatives in 2010. They voted House Majority Leader Eric CantorEric Ivan CantorThe Hill's Morning Report — Sponsored by CVS Health — Trump’s love-hate relationship with the Senate Race for Republican Speaker rare chance to unify party for election Scalise allies upset over Ryan blindside on McCarthy endorsement MORE (R-Va.) out of office in a Republican primary. They gave Republicans a Senate majority in 2014. They essentially forced Speaker House John BoehnerJohn Andrew BoehnerZeal, this time from the center Juan Williams: The GOP's deal with the devil Hillicon Valley: Trump hits China with massive tech tariffs | Facebook meets with GOP leaders over bias allegations | Judge sends Manafort to jail ahead of trial | AT&T completes Time Warner purchase MORE (R-Ohio) to resign last fall.

Voters sent Republicans to Washington to use their rare and historic control of both Houses of Congress to stop President Obama. It is high time now, in the fourth quarter of Obama's presidency, to use this empowerment on the most important issue of our time. McConnell and Grassley deserve credit for recognizing the importance of this moment and the charge they have from voters.

President Obama could choose to follow the examples of Presidents Eisenhower and Hoover by crossing party lines. He could nominate a solid defender of the rule of law and the Constitution, such as Sen. Mike LeeMichael (Mike) Shumway LeeGOP senators introduce bill to prevent family separations at border Another chance to seek the return of fiscal sanity to the halls of Congress Trump plan to claw back billion in spending in peril MORE (R-Utah). If so, the Senate would have an easy time confirming Obama's selection. If not, the country will be better off leaving Justice Scalia's chair empty until a worthy successor can be found.

Trotter is a political analyst and attorney. Her views are her own.